Gambar halaman

tels " being construed so as to include shares of cor- creditors, can it not be treated by them as a nullity? porate stock and choses in action. Sims v. Thomas, 12 We can see no good reason, if we look simply to the A. & E. 536, 554; Barruck v. M'Culloch, 3 Kay & J. 110; | language of the statute, why this view, which is the Stokoe v. Couan, 29 Beav. 637; Pinkerton v. Manchester logical view and the view which obtains in regard to & Lawrence Railroad, 42 N. H, 424, 457. This construc- real estate and tangible personal property, should not tion has been criticised as too lax and elastic. Doyle v. be taken. Is there any reason why, if we look beyond Sleeper, 1 Dana, 531.

the statute to the character of the property, this view Other cases hold that the statute is simply declara- should not be taken? It may be thought that such tory of the common law and that any transfer of prop-attachments and levies, if upheld, will expose the corerty, which is liable to execution, if made by the poration and innocent third persons to jeopardy and owner with intent to hinder, delay, and defraud his fraud. We think the corporation has notice enough creditors, is void as to such creditors at common law. by the procedure prescribed for attachment or levy, to Cadogan v. Kennett, 2 Cowp. 432; Sturtevant v. Ballard, put it on inquiry and is therefore protected if vigilant. 9 Jobps. R. 337; Hamilton v. Russell, 1 Cranch, 309; | Doubtless there is danger to innocent third persons. (lements v. Moore, 6 Wall. 299, 312; Blackman v. Whea. The fraudulent transferee having a certificate may sell ton, 13 Minn. 326; Hudnal v. Wilder, 4 McCord, 291; the stock after attachment or levy to a bona fide purPeck v. Land, 2 Ga. 1, 10; Fox v. Hills, 1 Com. 295; chaser, who buys trusting to the certificate. There is Lillard v. McGee, 4 Bibb, 165; 1 Story Eq. Juris., $ 352. the same or nearly the same danger however when We are inclined to think the cases first cited notwith- there has been no fraudulent transfer; for a debtor standing the criticism on them were rightly decided; / whose stock standing in his own name has been atbut if not, we are entirely satisfied of the correctness tached or levied on still retains his certificate, and may of the opinion of Lord Mansfield, so often reiterated sell his stock to a bona fide purchaser, who buys in by learned jurists and judges, that “the principles ignorance of the levy or attachment, trusting to the and rules of the common law, as now universally certificate. It seems clear therefore that these dangers known and uuderstood, are so strong against fraud in afford no sufficient reason for any distinction in this every shape, that the common law would have at- respect between corporate stock and other personal tained every end proposed by the statute." Cadogan v. property. The defendant calls our attention to the Kennett, 2 Cowp. 432, 434. We think moreover that case of Van Norman v. Jackson Circuit Judge, 45 Mich. tbese principles, however it may be with the statute, 204, in which it was decided, that under the statute of are not limited in their operation by any Procrustean Michigan, shares of corporate stock are not liable to formula, but that whenever any kind of property, attachment or levy on writ or execution unless they tangible or intangible, becomes liable to be taken bystand in the name of the defendant in such writ or exattachment or execution for debt, they immediately ecution. The decision however seems to rest mainly extend to it their protection. And see Scott v. on certain words or phrases and on a provision in the Indianapolis Wagon Works, 48 Ind. 75, 79.

Michigan statute which are not in ours. The provisWe have also come to the conclusion that i he shares ion referred to makes it the duty of the officer selling of stock were liable to be attached aud to be sold on the stock to leave a certified copy of the execution and execution notwithstanding this prior transfer, if the of his return thereon with the corporation, and theretransfer was fraudulent and void. It is true the stat- upon entitles the purchaser to a certificate of the ute directs, that in case of attachment on original writ shares bought by him upon paying the fees therefor, or mesne process, the proper officer of the corporation and for recording of the transfer. Such a provision shall render to the court an account on oath of what imports that the title must pass by the sale, and therestock or shares the defendant had. Gen. Stat. R. I., fore implies almost of necessity that the shares of ch. 197, $ 9; Pub. Stat. R. I., ch. 208, § 9. From this stock, to be liable to the sale, must stand in the name it may be inferred that it was contemplated by the of the debtor so that no question of fraud can remain statute that the shares when attached should be in the for settlement. name of the defendant. Doubtless this is what would Our statute simply requires the corporation to reordinarily occur, but we do not think the inference cord the sheriff's deed; it does not require the corpothat it must occur to make the attachment valid is ration to recognize the purchaser as a stockholder by warranted. The statute directs the affidavit but it issuing a certificate of stock to him. Under a statute does not provide that a neglect to make it either in- of Indiana corporate stock may be taken on validates the attachment or subjects the corporation tion. to any liability.

In Scott v. Indianapolis Wagon Works, 48 Ind. The language in Falk v. Flint, 12 R. I. 14, is too broad. 75, 79, which was a suit in equity by a judgment crediIt is provided in Gen. Stat. R. I., ch. 212, & 20; Pub. tor for stock fraudulently transferred by the debtor, Stat. R. I., ch. 223, $ 22, that shares of stock may be the court while sustaining the suit remark, that "nottaken and sold on execution without any previous at- withstanding the transfer of the stock by the executachment, and in such a case no affidavit is required. tion defendent, the sheriff may still levy upon and sell Corporate stock has long been attachable, Digest of it, when it has been fraudulently assigned by the 1822, p. 163, but until quite recently it could not be at- debtor." See also State, Bush v. Warren Foundry & tached on original writ unless the defendant was out Machine Co., 32 N. J. L. 439. of the State or concealed within it so that he could not The defendants contend that the complainant, as be personally served. It is probable therefore that the purchaser at the execution sale, cannot maintain a primary purpose of the affidavit was to show whether suit in equity to avoid the transfers as fraudulent. there was any stock to be attached to give the court They contend that if such a suit was to be brought, it jurisdiction. The statutes, whether they relate to at- should have been brought by the complainant and his tachment or lery, all of them designate the stock co-plaintiff at law,as judgmeut creditors in aid of their simply as the stock of the defendant, not as stock execution, after levy and before sale, so that a fair sale standing in his name. The question is whether the could have been bad. There is some plausibility in stock of a debtor, which he has transferred in fraud of this argument, for doubtless the stock would have sold his creditors, is not still as to them the stock of the better if the transfers had been first avoided; but if debtor, the same as the real estate of a debtor, which the transfers are fraudulent the defendants are to he has conveyed away in fraud of his creditors, is still blame for their being so, and therefore if they suffer as to them his real estate and may be attached or lev. in consequence of it, they have no right to complain. ied upon as such. The transfer being void as against | Hildreth v. Sands, 2 Johus. Ch. 35, 50. The cases are


in conflict upon the question whether equity will aid a sumed to know and to conform to. When therefore purchaser of real estate at an execution sale by avoid- it is presented for application by the courts of the ing conveyances previously made by the judgment United States in a litigation growing out of the same debtor in fraud of his creditors. There are cases which facts, of which they have jurisdiction by reason of the hold that the purchaser is as much entitled after sale, citizenship of the parties, the plaintiff has a right, under as the creditor before sale, to maintain the suit. Hild- the Constitution of the United States, to the independ. reth v. Sands, 2 Johns. Ch. 35; Sands v. Hildreth, 14 ent judgment of those courts, to determine for them. Johns. R. 493; Gallman v. Perrie, 47 Miss. 131; Pul- selves what is the law of the State by which his rigbts liam v. Taylor, 50 id. 531; Frakes v. Brown, 2 Blackf. are fixed and governed. It was to that very end that 295; Harrison v. Kramer, 3 Iowa, 543; Gerrish v. Mace, the Constitution granted to citizens of one State,suing 9 Gray, 235; Murphy v. Orr, 32 Ill. 489; Tappan v. in another, the choice of resorting to a Federal tribuEvans, 11 N. H. 311. On the other hand there are nal. Burgess v. Seligman, 107 U. S. 20, 33. We bare cases which hold that equity will not interpose, or at however considered the reasoning of the Supreme least not until the purchaser has first obtained posses- Court of Mississippi in its opinion in the case of Haw. sion at law. Cranson v. Smith, 47 Mich. 189; Thigpen kins v.Carroll County, with the respect which is due to v. Pitt, 1 Jones Eq. 49; Smith's E.cecutor v. Cockrell, 66 the highest judicial tribunal of a State speaking Ala. 64.

upon a topic as to which it is presumed to bave pecuThe ground on which courts that refuse aid do so, is liar fitness for correct decision, and while we are bound that the action of trespass and ejectment for posses- to admit the carefuluess and fullness of its examinasion affords an adequate remedy at law. In the case tion of the question, we are not able to adopt its conat bar the complainant cannot maintain any action at clusions. On the contrary, we are constrained to fol. law against the fraudulent transferee for possession, low the decision in St. Joseph Township v. Rogers, 16 and if he has any remedy at all at law, he has no ade- Wall. 664, and adhere to the views expressed by this quate remedy. We think therefore that whatever the court in County of Cass v. Johnston, 95 U. S. 360, in true rule may be in regard to purchasers of real estate, deciding the same question upon the construc:ion of a the suit here should be maintained.

provision of the Constitution of Missouri, which is Demurrer overruled. identical with that of the Constitution of Mississippi

under consideration. It was there declared and deci.

ded that “all qualified voters who absent themselves UNITED STATES SUPREME COURT AB

from an election duly called are presumed to assent to

the expressed will of the majority of those voting, onSTRACT.

less the law providing for the election otherwise de

clares. Any other rule would be productive of the TRIAL-CHARGE OF COURT-ERROR.-During the greatest inconvenience, and ought not to be adopted trial of a case whose cause of action, as set out in the unless the legislative will to that effect is clearly exdeclaration, is in effect that the defendant had fraudu

pressed." In Missouri, as in Mississippi, there was a lently imposed on the plaintiff, and by false represen- constitutional provision requiring a registration of all tations extracted money from him, the court in in- qualified voters. State v. Sutterfield, 54 Mo. 391. (2) strucùing the jury should confine itself to the point The assent of two-thirds of the qualified voters of the really in issue, which is the defendant's actual repre- county, at an election lawfully held for that purpose, sentation as to the material facts, and not his silence, to a proposed issue of municipal bonds, intended by whereby the plaintiff had been influenced to pay the that instrument, meant the consent of two-thirds of money. Thorwegan v. King. Opinion by Mat- the qualified voters present and voting at such electiou thews, J.

in its favor, as determined by the official return of the [Decided May 5, 1884.]

result. Supervisors of Carroll Co. v. Smith Opinion


[Decided May 5, 1884.) PONS- "TWO-THIRDS - CONSTITUTION OF MISSISSIPPI.-(1) The record of a judgment in a former suit BANKRUPTCY-PAYMENT OF DEBTS-EQUITABLE AShas not the effect of an estoppel upon a person who was SETS- TRUST FUND -- LEX REI SITÆ.—The question of not a party in that suit. In this case the bonds were subjecting the equitable interest in the real estate of negotiable, and there was therefore no coustructive a bankrupt to the payment of his debts is one to be notice of any fraud or illegality by virtue of the doc- settled according to the local laws in the State wherein triue of lis pendens. County of Warren v. Marcy, 97 such real estate is. This was expressly decided in U. S. 96. It is not alleged in the plea that the defend- Nichols v.Levy, 5 Wall. 433, and was also intimated in ant in error had actual notice of the litigation, or of the Nichols v. Eaton, 91 U. S. 716-729. The Bankruptcy grounds on which it proceeded, or that any injunction Act, section 5045 Rev. Stat., expressly adopts the local was served upon the board of supervisors; and if he law of the State as to such exemptions. And in Illihad, that notice would have been merely of the ques- nois the subject is regulated by a special statutory protion of law, of which, as we have seen, he is bound to vision. By section 49, chapter 22 (Hurd's Rev. Stat. take notice, at all events, and which is now for adjudi. II. 195) of the Chancery Practice Act of that State, cation in this case. There is nothing in the case of providing for creditors' bills of discovery and to reach Williams v. Cammack, 27 Miss. 209, 224, to which we and apply equitable estates and interests to the satisfacare referred by counsel on this point, inconsistent tion of debts, property held in trust is made subject to with these views. The decision in Hawkins v. Carroll that proceeding, “except when such trust has in good County, 50 Miss. 735, is not a judgment of the Supreme faith been created by, or the fund so held in trust has Court of Mississippi, construing the Constitution and proceeded from some person other than the defeudant laws of the State, which, without regard to our own himself.” The Tennessee statute, which was applied opinion upon the question involved, we feel bound to to the exoneration of the interests sought to be approadopt and apply in the present case. It is a decision priated in Nichols v. Levy, 5 Wall. 433, was substanupon the very bonds here in suit, pronounced after the tially the same as this; and both seem to be copies controversy arose,and between other parties; it was not from that of New York (2 Rev. Stat. 173, SS 38, 39), alA rule previously established, so as to have become rec- though in the last named State, as appears in the de. ognized as settled law, and which of course all parties cision of the Court of Appeals in Williams v. Thorp, to transactions afterward entered into would be pre- 70 N. Y. 270, and McEvoy V. Appleby, 27 Hun, 44,






another statute (1 Rev. Stat. 729, $ 57) limits the ex- man, 106 id. 122; S. C., 1 Sup. Ct. Rep. 58; St. Paul & emption in cases where income is payable under such C. R. Co. v. McLean, 2 id. 499. The Circuit Court a trust, to the principal fund itself, aud the beneficial does not take the suit unless its jurisdiction appears of interest of the cestui que trust in the income only to record; and if before the statutory time, when the rethe extent of a fair support of the beneficiary out of moving party is required to enter a copy of the record the trust estate. The statute of Illinois does not ap- and his appearance in the United States Circuit Court, ply merely, as is argued, to cases where a technical dis- either party procures a transcript and files it in the covery is sought, but to all cases where the creditor, or clerk's office, the jurisdiction then appears of record, Lis representative, is obliged, by the nature of the in- and all proceedings necessary to prepare the cause for terest sought to be applied, to resort to a court of trial at the next session of the court can be taken by equity for relief, as he must do, in all cases, where the either party. The court then has jurisdiction of the legal title is in trustees, for the purpose of serving the cause as if it had been commenced there by original requirements of an active trust, and where, conse- process. In the case of Kern v. Huidekoper, 103 U.S. quently, the creditor has no lien, and can acquire none, 487, the plaiutiff applied for removal July 6th, and filed at law, but obtains one only by filing a bill in equity the transcript in the clerk's office of the United States for that purpose. If the trust was merely passive, and Circuit Court on July 27th The term of that court therefore executed by the law of its locality, in the prescribed by law began on July 20, before the petition cestui que trust, so as to be subject to the levy of exe- for removal was filed in the State court. On Novemcutions at law, and the present was such a case, then ber 14th, the July term still continuing, the Circuit the bill would fail, because the remedy at law would be Court made an order approving the filing of the record. adequate and complete. Spindle v. Shreve. Opinion The Supreme Court held that the filing of the record by Matthews, J. (See 24 Eng. R. 544; 60 How. Pr. 161. July 27th gave the Circuit Court the right to proceed -Ed.]

with the cause; that is, as I understand the decision, [Decided May 5, 1884.)

to go on aud perfect the issues, if necessary, and grant provisional remedies, but the removing party is not

required to try the issues until the term next ensuing UNITED STATES CIRCUIT COURT AB- that of the State court when the cause was removed. STRACT.*

Cir Ct., D. Minn., April 24, 1884. Judge v. Anderson.

Opinion by Nelson, J. CoxstITUTIONAL LAW-TAXATIO

SHIP AND VATE ENTERPRISES.-State legislatures have no au

CONTRACT-RFSPONSIBILITY.- A stevedore employed thority to authorize taxation in aid of private enter

by another, who has contracted to unload a vessel, cau prises or objects, even where there is no express con

recover for injuries sustained by the defective applistitutional prohibition. It is not necessary to review

ances furnished him by the vessel, upon the same evithe many cases cited. A court cannot ignore that the

dence which would enable his employer to recover. Federal and State Constitutious-nay, that all State

Though there is no privity of contract between the Constitutions-prohibit the taking of private prop

ship owners and him, they were under the same obli. erty even for public uses without just compensation.

gation to him as they were to his employer. What Is it to be argued therefore that private property can

would be negligence to one would be negligence to the be taken for private uses, either with or without just other. Coughtry v. Globe Co., 56 N. Y. 124; Mulchey compensation? The Supreme Court of tbe United

v. Methodist Society, 125 Mass. 487. The implied obStates stated the elemental thought underlying amer

ligation on the part of one who is to provide machinery, ican constitutional law when it declared that an at

or means by which a given service is to be performed tempt, through the guise of the taxing power, to take

by another, is to use proper care and diligence to see one man's property for the private benefit of another

that such instrumentalities are safe and suitable for is void, an act of spoliation, and not a lawful use of

the purpose. “It is the duty of an employer inviting legislative or municipal functious. There have been

employees to use his structures and machinery, to use so many well-considered cases in the United States

proper care and diligence to make such structures and courts and in the State courts on this subject that it

machinery fit for use. Whart. Neg., § 211. If he would be a work of supererogation to repeat their

knows, or by the use of due care might have known, arguments. It must suffice that the weight of au

that they were insufficient, he fails in his duty. This thor ty and sound reason concur in holding bonds and

doctrine is cited with approval in Hough v. R. Co., 100, coupons like those in question void ab initio. Loan

U. S. 220. Due care or ordinary care implies the uso Ass'n v. Topeka, 20 Wall. 665; Com. Bank v. City of

of such vigilance as is proportional to the danger to Iola, 2 Dill. 353; Parkersburg v. Brown, 106 U. S. 487;

be avoided, judged by the standard of common pruS. C., 1 Sup. Ct. Rep. 442; Allen v. Jay, 12 (N. S.) Am.

dence and experience. Applying this test here, where Law Reg. 481, with notes; State v. Curators State

if the appliances to be used were defective, serious Univ.,57 Mo. 178; St. Louis Co.Ct. v. Griswold, 58 Mo.

casualties were to be apprehended, it was the duty of 175; Livingston Co. v. Darlington, 101 U. S. 407. In

the master of the steamer to exercise a corresponding Cooley Const. Lim. the subject is fully discussed,

vigilauce to provide against them. Cir. Ct., S. D. New cases reviewed, and conclusions stated. Page 261 et

York, April 12, 1884. Coughlin v. The Rheola. Opinion seq. Cir. Ct., E. D. Mo., March 22, 1884. Cole v. City

by Wallace, J. of Lagrange. Opinion by Treat, J. REMOVAL OF CAUSE-WHEN JURISDICTION ATTACHES.

MARYLAND SUPREME COURT ABSTRACT.* -It has been decided by the Supreme Court of the United States that the jurisdiction of the United States Circuit Court attaches in a case removable, BANK-AFFIDAVIT BY CASHIER.- Where a suit is under the statute, at the time when the petition and brought by a national bank under the act of 1864, ch. bond is filed in the State Court. The transfer of juris- 6, the cashier of the bank is the proper officer to make dictiou is then complete in advauce of the entry of a the affidavit required by the act to be filed with the transcript of the record in the clerk's office of the declaration, stating the true amount that the defendCircuit Court. Duncan v. Gegan, 101 U. S. 812; Rail- ant is indebted to the plaintiff over and above all disroad Co. v. Koontz, 104 id. 15; Steamship Co. v. Tug

counts. He has the means of knowing the dealings * Appearing in 19 Federal Reporter,

*Appearing in 61 Maryland Reports.

son, J.

between the bank aud its debtors, and it is his duty to There were confessedly two brokers intrusted with the superintend the collection of debts due to the bauk, sale of the property by Miller. Neither had exclusive and to make such arrangements as may facilitate that authority. Each has negotiated with the same person object, aud to do any thing in relation thereto that an who ultimately buys. The terms first offered through attorney may lawfully do. If an affidavit is to be made the plaintiff were not accepted; and the offer made by stating the precise sum due by a debtor to the bank he Stayman was rejected; and there is evidence tending is the proper officer to make it. Trenton Bank v. Hav- to show entire abandonment of the idea of investment erstick, 6 Hals. 172; Mix v. Andes Ins. Co., 74 N. Y.55; , in that property until negotiations were renewed by Shaft v. Phønix Mut. Life Ins. Co., 67 id. 549; Angell the instrumentality of McSherry and White; after & Ames 'on Corp., $$ 299, 366. Parkhurst v. Citizens' which the property was sold on the same terms as National Bank of Baltimore. Opinion by Robin- originally offered, except the modification of $100

more per annum for the lease taken by Miller for five TRUST AND TRUSTEE-REMOVAL-BREACH OF TRUST

years from the purcbaser. The whole question -FRAUD.-A testatrix bequeathed to A. a conditional

whether the sale was really effected in consequence of legacy of $3,000, and after sundry bequests to other

what plaintiff did in first bringing the parties into nepersous devised the residue of her estate in trust for gotiation, or whether the negotiations through him the benefit of P. for life, with remainder to his chil

were bona fide broken off, and abandoned by Stayman, dren. On a bill filed by A. against M., as substituted and the sale finally effected wholly through the influ trustee under the will, to compel the paymeut of his

enco of others, was, we think, fairly presented to the legacy, a compromise was effected by which A. agreed jury. Livezy v. Miller. Opinion by Irving, J. to settle his claim for $1,100. This sum was accord- VENUE-CRIMINAL CASE EXPENSE OF REMOVALingly paid to him by M., and upon its receipt he gave Where the case of a party charged with a criminal of M. a release for $3,360. After the payment of $1,100 to fense is removed to another county for trial, the sheriff A.,and A.'s release of the whole legacy, further proceed of the county to which the case is removed is the ings were had, upon which, and upon the admission and proper person to take charge of the removal of the testimony of M. that the personal estate was found in- | prisoner. The commissioners of the county to which sufficient to pay the whole of said legacy, a decree was the case is removed have the power, in the absence of passed for the sale by M. of certain ground rents be- any statute regulating it, to allow the sheriff a reasonlonging to the trust estate. M. was afterward re- able sum for the removal of the prisoner. If the cirmoved from the trust, and in accounting with the cumstances of the case be such as to call for extra care trustee appointed to succeed him he claimed that the in guarding the prisoner, and keepiug him safely to difference between the $1,100 actually paid in settle- answer the charge against him, and in the opinion of ment of the legacy and the sum of $3,360 for which the the sheriff the unguarded jail is not sufficieut for that release was given, was in fact paid by him to P., purpose, it is his duty to guard it; and the expense of the tenant for life of the trust estate. Held (1), that as such guard must be borne, not by the sheriff personagainst the incoming trustee representing the parties ally, but by the community, for whose protection the in remainder, M. could not rely on a breach of prisoner is confined. If any authority is required for trust committed by himself, although cummitted with a proposition that seems to us so plain, it can be found the assent of P., the equitable tenant for life. No in the case of Hart and others v. Commissioners of priuciple is better settled than that a cestui que trust Vigo County, 1 Carter (Ind.), 309, which was will not be permitted to set up a breach of trust to case almost precisely like the one at bar, and in which which he has assented, and the fruits of which were the court said that tbe expense of guarding the jail received by him. Walker v. Symonds, 3 Swanst. 6t; must be considered necessary and consequent upon Brice v. Stokes, 11 Ves. 326; Nail v. Puuter, 5 Simons, | the change of venue, and must be paid by Vigo county 555; Booth v. Booth, 1 Beavan, 125; Lincoln v. Wright, (from which the case was removed), and that the fact 4 id. 427. (2) That it was the duty of M. as trustee to that Vigo county had a good jail was immaterial. The preserve and protect the trust estate for the benefit of commissioners of the county where the case is tried all the parties in interest, and he had no right to per- have the same power to determine the proper allowmit the life tenant to receive and waste the corpus of ance to be made for removing the prisoner from the the estate. (3) That the compromise of the legacy was place where he is tried to the penitentiary, that they a compromise which inured to the benefit of the trust have to determine the allowance for his removal to the estate; and the subsequent sale of the ground rents, place of trial. Mayor, etc., v. Howard Co. Commrs. on the pretense that the sale was necessary to pay a Opinion by Stone, J. large balance still due on the legacy, was a fraud upon

PARTNERSHIP-CONTRACT UNDER SEAIPOWER OF the cestuis que trust. (4) That as against the new trus

ONE PARTNER TO EXECUTE-VARIANCE-WAIVER OR tee, representing the cestuis que trust under the will,

ABANDONMENT-PAROL EVIDENCE.--The law is too it was no answer to say that the money derived from firmly established to admit of doubt, that one partner the sale of the ground rents was paid to P., the tenant

cannot bind his co-partner by signing an instrument for life. (5) That in accounting with the new trustee all

under seal, in the firm name and style, simply by virthat M. had a right to claim of the $3,360 was the $1,100

tue of his authority as partner. In such case, to make actually paid by him in the settlement of the legacy.

the instrument binding on the partner uot signing in Mitchell v. Colburn. Opinion by Robinson, J.

person, it must appear that there was either a previous BROKER-COMMISSIONS—WHEN ENTITLED TO.-It is authority, or a subsequent ratification by such part. well settled by the authorities generally, and in this ver, either express or implied, whereby he has adopted State, that a broker is entitled to his commissions if the signature as binding upon him. This is the rule the sale effected can be referred to his instrumentality. as we find it stated in the authorities upon the subIt is also the established law, that after negotiations ject, and it has been fully recognized by this court begun through a broker's intervention have virtually upon more than one occasion. Smith v. Stone culminated in a sale, the agent cannot be discharged so 4 G. & J. 310;! Albers v. Wilkinson, 6 id. 358. In as to deprive him of his commissions. Keener v. Har. some of the American cases the rule has been spoken rod et al., 2 Md. 63; Tinges v. Moale, 25 id. 480; Jones of as rigid and techuical; but as said by Judge Story V. Adler, 34 id. 440; Attrill v. Patterson, 58 id. 226. (Story on Part., $ 121), the main struggle has been, not The ruling in this case does no violence to these prin- so much to contest the doctrine of the common law, ciples, and is in harmony with the authorities cited. that an authority to execute a sealed instrument does


not flow from the ordinary relation of partnership, as followed in many other cases, and bas but recently to contest the doctrine, that it requires a prior author- been cited with approval by the Supreme Court of the ity under seal, or a subsequent ratification under seal, United States, in the case of the Canal Co. v. Ray, 101 to make the execution valid. The old authorities, and U. S. 522, 527 That tender of performance, or waiver indeed the whole current of English decision, estab- of performance, of a coudition or covenant under seal lish and maintain the rigid doctrine in its fullest ex- may be shown by parol evidence, was expressly held in lent. This strict doctrine however has been, by many the case in 5 Md. 170; and waiver or abandonment is of the American decisions, relaxed to the extent of al- what was sought to be shown in this case. Herzog v. lowing the previous authority or subsequent confirma- Sawyer. Opinion by Alvey, C. J. tion to be shown by parol or by circumstances; and this seems reasonable and proper to be allowed. Schmertz v. Shreeve, 62 Penn. St. 457 ; Russell v. An

CALIFORNIA SUPREME COURT ABSTRACT. pable, 109 Mass. 72; Gibson v. Warden, 14 Wall. 244. But the general rule is maintained; and if it be true that there was no assent to the siguature affixed to the

EVIDENCE-CLOSING SHOP-DAMAGES-VALUE EXarticles of agreement, the covenant sued un is not the

EMPTION-TRESPASS.-In an action to recover damages joint covenant of the defendants, as alleged in the

for closing a barber shop, evidence as to the wages of declaration, but the covenant of Herzog alone; and

the men employed is inadmissible to determine the hence the plea of non est factum is sustained, because

profits. The wages usually remain the same whatever of the variance. i Chitty Pl. (16th ed.) 514; Pitt v.

the profits, and the evidence is moreover incompetent Green, 9 East, 188; Howell v. Richards, 11 id. 633. At

as not being the best evidence available. “The value common law, an obligation under seal

of an 'offer' depends upon too many considerations

cannot be discharged before breach by

to allow it to be used as a test of the worth of the prop

agreement in parol, or by any instrument not executed

erty.” Fowler v. Com'rs, 6 Allen, 96. The testimony with the same solemnity as the original obligation,

of the witness, Coleman, stands upon a different footAll authorities however agree that after breach, for

ing. In testifying to his own opinion of the value of the damages occasioned thereby, any agreement or

the property, he spoke of an offer made by himself. In transaction between the parties that would operate as

Perkins v. People, 27 Mich. 389, and Dickinson v. an accord and satisfaction in ordinary cases, may be

Pittsburgh, 13 Gray, 554, it is intimated that evidence

of this nature tends to prove the sincerity of the opinpleaded in discharge. Harper v. Hampton, 1 H. & J.

ion of the witness, and is admissible. An instruction 675; Kaye v. Waghorn, 1 Taunt. 4:28; 1 Chitt. Pl. (16th ed.) 515, 516. But this distinction is extremely tech

was given to the effect that if the property was exempt

the defendant was a trespasser ab initio. There are nical, and in many cases it has been found to operate injustice; and consequently, in many of the courts of

cases which held that way. But in California, and this country the rule has been, to a considerable ex

many other States, the right of exemption is held to tent, modified. Of the many cases upon the subject,

be a personal privilege, which if not claimed, is waived those most frequently referred to are Fleming v. Gil

by the debtor. In this State we have been accustomed bert, 3 Johns. 528; Dearborn v. Cross, 7 Cow. 48;

to proceed under the latter rule, and we prefer it, cerLangworthy v. Smith, 2 Wend. 587; and the principle

tainly in cases where the property is not of a class of the decisions in those cases was fully adopted by

wholly exempt, because it is equally beneficial to the this court in the case of the Franklin Fire Ins. Co. v.

debtor and at the same time affords a protection to Hamill, 5 Md. 170, 182. Among the authorities re

the officer. The reason of the rule is well expressed

in Twinam v. Swart, 4 Lans. 264. Prima facie all ferred to with approval by this court in Hamill's case, 5 Md. 182, is 1 Roll. Abr. 453, pl. 5, setting out a case

property is liable to execution, and it was the duty of where the condition of a bond was to raise a mill, and

the constable, in the first instance, to make the levy. the obligor came to the obligee and told him that

He cannot know intuitively that property is exempt, everything was ready to erect the mill, and asked him

nor indeed, that exemptions will be claimed if it is. when he would have him come and put it up; the ob

* * It would be intolerably oppressive to place ligee answered, that he would not have it, and dis

the constable in the dilemma of liability to an action charged the obligor entirely of the obligation to erect

if he refuses to levy his execution, and to an aotion of the mill, and that was held sufficient to excuse the

trespass if he does." Hammersmith v. Avery. Opinobligor from the performance. In the case of Flem

ion by Belknap, J. ing v. Gilbert, supra, it was held that evidence of a

[Decided Jan. 23, 1884.] parol agreement of the obligee, to waive any further ELECTION—EVIDENCE-BALLOTS-TAMPERING-BURperformance of the requirements of the condition of a DEN OF PROOF.-In cases of contested elections, the boud, was admissible, as an answer to the action. The ballots themselves, if rigorously preserved, are the learned judge, speaking for the court, said: “The highest and best evidence, and the burden of proof is plaintiff's conduct can be viewed in no other light on the contestant to prove that they have not been than as a waiver of a compliance with the condition of tampered with, and not upon the defendant to show the bond, so far as it related to a discharge of the that they have been fraudulently disturbed. It is mortgage on record; and I see no infringement of any error for the court to assume that the ballots had been rule or principle of law, in permitting parol evidence undisturbed because it was not satisfied from the eviof such waiver. It is a sound principle, that he who dence that actual fraud had been committed. Mr. prevents a thing being done, shall not avail himself of Justice Cooley says: “The returus of the canvassing the non-performance he has occasioned. Had not the

boards are prima facie evidence in the courts. * * plaintiff dispensed with a further compliance with the If however the ballots have uot been kept as required condition of the boud, it is probable that the defend- | by law, and surrounded by such securities as the law ant would have taken measures to ascertain what has prescribed, with a view to their safe presteps were requisite to get the mortgage discharged of servation, as the best evidence of the election record, and would have literally complied with the it would seem that they should not be received condition of the bond." And the learned judge then as evidence at all, or if received, it should be refers to the case iu 1 Roll. Abr. 453, pl. 5, to which we left for the jury to determine, upon all the circumhave referred. The principle of the decision in Flem- stances of the case, whether they constitute more reing v. Gilbert has not only been fully approved and liable evidence than the inspector's certificate, which followed by this court in 5 Md. 182, but it has been is usually prepared immediately on the close of the

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